The Supreme Court recently pulled up the act of police officer for arresting an accused without complying with provisions under Section 41 (A), CrPC and also when the bail application was pending before the top court.
The bench of Justices Ajay Rastogi and AS Oka were displeased upon this act while considering a SLP assailing Bombay High Court’s order of rejecting the petitioner’s anticipatory bail.
Allegations by Petitioner (Accused)
Advocate Sunil Fernandes who appeared for the petitioner had submitted that the Investigating Officer did not serve any notice u/s 41(A) of CrPC, 1973.
He further submitted that after noticing the fact that the petitioner had approached Top Court pre arrest bail, the IO approached the petitioner and took him into custody on March 8, 2022.
Supreme Court
Taking into account the counsel’s contention and considering that the petitioner was already in custody, the bench granted the petitioner liberty to file regular bail application. The bench ordered,
Since the petitioners have now been in custody, it may not be appropriate for this Court to pass further orders but at the same time, we grant them liberty to file regular bail application.
If such an application is filed, it is expected from the Trial Court to take note of non-compliance of Section 41(A) Cr.P.C and dispose of the application for post-arrest bail, if any, filed by the petitioners within a reasonable time as expeditiously as possible.
While disposing the SLP, the bench in its order said,
We deprecate such practice of the Police Officer in overstepping after the matter being instituted in this Court and taking the petitioners into custody without compliance of Section 41(A) Cr.P.C. and keeping in view the judgment of this Court in Arnesh Kumar vs. State of Bihar & Anr. (2014) 8 SCC 273.
What Is Section 41a CrPC?
As per Section 41A of the Code of Criminal Procedure (hereinafter, ‘Cr. P.C.’), if any police officer requires the participation of any individual who is not requiredto be fundamentally arrested under Section 41(1) of Cr.P.C. or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, the official can give a notice for the equivalent.
The individual to whom the Notice is served is obliged to show up at the specified place and time. The individual confirming to the Notice will not be arrested except if in any case considered fit by the Police for which the official is duty-bound to record reasons in writing. Inability to consent to the Notice is a ground for arrest.
MUST READ –
ARNESH KUMAR VS STATE OF BIHAR | Landmark Judgement On Unnecessary Arrests Under Section 498A
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